In 2017, the U.S. Court of Appeals for the Second Circuit upheld DEC’s denial of Constitution’s application for a 401 water quality certification (WQC). Constitution Pipeline Co, LLC v. N.Y.S. Dep’t of Env’t Conservation, 868 F.3d 87 (2d Cir. 2017). The following quotes are highlighted in the decision because they establish binding precedent for the DEC’s review of Constitution’s current application.
“We note first that there is nothing in the administrative record to show that NYSDEC received the information it had consistently and explicitly requested over the course of several years.” Id. at 99-100.
“We disagree that NYSDEC’s action was preempted.” Id. at 100.
“A state’s consideration of a possible alternative route that would result in less substantial impact on its waterbodies is plainly within the state’s authority. See, e.g., Islander East II, 525 F.3d at 151-52.” Id. at 101.
“Here, the record amply shows, inter alia, that Constitution persistently refused to provide information as to possible alternative routes for its proposed pipeline or site-by-site information as to the feasibility of trenchless crossing methods for streams less than 30 feet wide–i.e., for the vast majority of the 251 New York waterbodies to be crossed by its pipeline–and that it provided geotechnical data for only two of the waterbodies.” Id. at 103.
On May 30, 2025, Constitution applied for a 401 WQC from the DEC before applying for a license to construct the pipeline from FERC. This is like putting the cart before the horse and creates a new legal problem. While we’re glad that DEC issued a notice of incomplete application on July 2, 2025, it should not be reviewing Constitution’s application until there’s a new FERC docket and EIS. The Second Circuit vacated the four FERC orders and instructed FERC to dismiss the agency proceedings in 2021. Since that order was issued, there is no longer a legally valid (1) docket, (2) environmental impact statement, or (3) federal license for this project. Without a new federal application and associated environmental review, DEC must deny Constitution’s application on procedural grounds, and it must do this before it opens a public comment period.